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AAT Bulletin

Issue No. 41/2014	20 october 2014
The AAT Bulletin is a weekly publication containing a list of recent AAT decisions and information relating to appeals against AAT decisions. The Bulletin occasionally includes information on legislative changes that affect the AAT and other important developments.  
It is recommended that the Bulletin be read on-line. This has the advantage of allowing the reader to use hyperlinks to access the full text of cases and other internet sites mentioned in the Bulletin. 
The AAT does not make any representation or warranty about the accuracy, reliability, currency or completeness of any material contained in this Bulletin or on any linked site. While the AAT makes every effort to ensure that the material in the Bulletin is accurate and up-to-date, you should exercise your own independent skill and judgement before you rely on it. Information contained in this Bulletin is not legal advice and is intended as a general guide only.  You should rely on your own advice or refer to the full cases and legislation in relation to any proceedings.
Enquiries regarding this publication may be directed to aatweb@aat.gov.au. 
Contents
AAT Recent Decisions
Compensation
Freedom of Information
Practice and Procedure
Social Security
Taxation
Veterans' Affairs
Appeals
Appeals lodged
Appeals finalised

AAT Recent Decisions
This section of the Bulletin provides information about decisions recently published by the AAT.  Only AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.
Compensation
Durham and Comcare [2014] AATA 753; 17/10/2014; Senior Member G Ettinger
Comcare has accepted liability for lumbar spine injury incurred on 12 March 1996 – two further aggravations in 2005, 2006 – continuing request for physiotherapy reviewed by Comcare following more than 500 sessions – physiotherapy not provided following graduated reduction in December 2013 and reviewable decision – cost/benefit considerations – decision under review affirmed
Konstandopoulos and Comcare [2014] AATA 741; 14/10/2014; Senior Member AK Britton and Professor R McCallum AO, Member
Commonwealth employees – psychological injury – whether the injury was contributed to, to a significant degree, by the employees employment by the Commonwealth – whether the injury is a result of reasonable administrative action taken in a reasonable manner – meaning of “suffered as a result of” – decision set aside and substituted
Sener and Comcare [2014] AATA 734; 10/10/2014; Deputy President SD Hotop
Commonwealth employees – applicant suffered knee injury in 2002 – respondent accepted liability to pay compensation – applicant suffered lumbosacral disc protrusion in 2004 – applicant claimed compensation – applicant's disc protrusion not contributed to in material degree by employment – applicant's disc protrusion not a disease – applicant's disc protrusion not an injury arising out of, or in the course of, employment – applicant's disc protrusion not a compensable injury – decision under review affirmed
Freedom of Information
Grass and Secretary, Department of Immigration and Border Protection [2014] AATA 751; 17/10/2014; Senior Member AK Britton
Amendments to personal records – Whether information is “personal information” – Whether information is based on mistake of fact – Whether the author of any opinion was biased, unqualified to form the opinion or acted improperly in conducting the factual inquiries that led to the formation of the opinion – Whether the information is incomplete, incorrect, out of date or misleading – Whether power to amend should be exercised – Power to annotate
Knapp and Australian Accounting Standards Board [2014] AATA 744; 15/10/2014; Senior Member D Letcher QC
Access to electronic documents – documents contained on CDs – whether document is available for purchase by the public – documents not available to the public – documents only available upon inspection of CDs – decision under review set aside – Applicant entitled to access documents
Practice and Procedure
Wilkins and Australian Securities and Investments Commission [2014] AATA 748; 16/10/2014; Deputy President PE Hack SC
Application for stay – applicant seeking stay of implementation of banning order – applicant prohibited from providing financial advice for a period of five years – whether public interest in banning order outweighs prejudice to applicant – stay granted subject to conditions
Social Security
Confidential and Secretary, Department of Social Services [2014] AATA 737; 14/10/2014; Senior Member JF Toohey
Disability support pension – motor vehicle accident – spinal injury – anxiety and depression – whether conditions fully treated and stabilised – whether applicant had undergone reasonable treatment for anxiety and depression – whether continuing inability to work – decision under review affirmed
Goksu and Secretary, Department of Social Services [2014] AATA 752; 17/10/2014; Senior Member AF Cunningham
Overseas applicant – portability of disability support pension – capacity to perform work independently of program of support – decision under review affirmed
McDonald and Secretary, Department of Social Services [2014] AATA 747; 15/10/2014; Senior Member AF Cunningham
Family Tax Benefit – Applicant not entitled to Family Tax Benefit payments – Overpaid amounts are debts owed to the Commonwealth – Whether debt can be written off or waived – Decision under review affirmed
Paternostro and Secretary, Department of Social Services [2014] AATA 739; 14/10/2014; Dr I Alexander, Member
Pensions – disability support pension – whether applicant’s conditions were fully diagnosed, treated and stabilised – whether applicant’s impairments are rated 20 points or more under the Impairment Tables – decision under review affirmed
Taxation
Cronan and Commissioner of Taxation [2014] AATA 745; 15/10/2014; Professor R Deutsch, Deputy President
Whether it is appropriate for the Commissioner to apply identified industry benchmarks – whether the Applicant is liable to pay an administrative penalty in respect of any income tax and GST shortfall amounts – whether administrative penalties imposed in respect of any income tax and GST shortfall amounts should be remitted in whole or part – decision under review affirmed
Dewheath Pty Ltd and Commissioner of Taxation [2014] AATA 743; 15/10/2014; Senior Member D Letcher QC
Remission of penalty – failure to lodge Business Activity Statements – failure to lodge Income Tax Returns – Applicant bears onus – whether factors warranting remission – onus not discharged – decision under review affirmed
Guru 4U and Commissioner of Taxation [2014] AATA 740; 14/10/2014; Senior Member G Lazanas
Goods and services tax – GST registration – cancellation of registration – whether carrying on an enterprise – entitlement to input tax credits – what is the net amount for a period in circumstances where the taxpayer is held not to have been carrying on an enterprise – administrative penalty – calculation of penalty based on tax shortfall – whether conduct involved recklessness – whether applicant is entitled to remission of penalty – decision to cancel registration is affirmed – decision with respect to assessment of GST and penalty is set aside and substituted – decision not to remit penalty is affirmed
The Trustee for Rane Haulage Trust and Commissioner of Taxation [2014] AATA 733; 10/10/2014; Deputy President SE Frost
Superannuation Guarantee – Applicant had not made employer superannuation contributions by due dates – Applicant had not lodged Superannuation Guarantee Statements by due dates – whether nominal interest charge component of Superannuation Guarantee Charge was imposed correctly – whether assessments could be amended under section 37 of the Superannuation Guarantee (Administration) Act 1992 – decisions under review affirmed
Veterans' Affairs
Hardy and Repatriation Commission [2014] AATA 746; 14/10/2014; Brigadier C Ermert (Rtd), Member
Disposal of assets – whether a gift or return of a loan – deprived asset – decision affirmed
Nobes and Repatriation Commission [2014] AATA 742; 14/10/2014; Senior Member AK Britton
Widows’ pension – emphysema and ischaemic heart disease – whether disease was war-caused – whether disease was defence-caused – whether there is material that points to a hypothesis – beneficial legislation – decision affirmed

Appeals 
This section of the Bulletin provides information about appeals against AAT decisions that have been lodged or finalised.  Only appeals in relation to AAT decisions that have been published on AustLII have been included.  Full copies of the decisions can be accessed through the hyperlinks provided below.  
Appeals lodged
CASE NAME | AAT reference
Del Treppo v Comcare | [2014] AATA 711
McKinley v Repatriation Commission | [2014] AATA 670
Smith v Comcare | [2014] AATA 28

Appeals finalised
CASE NAME | AAT reference | court Reference
Australian Postal Corporation v Nunez | [2014] AATA 125 | [2014] FCA 1095
Ogden v Commissioner of Taxation | [2014] AATA 385 | [2014] FCA 1111
SQNR v Minister for Immigration and Border Protection & AAT | [2014] AATA 16 | [2014] FCA 1097

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AAT Bulletin		 issue 41/2014 aat